Findings Of Fact The Petitioner, at times pertinent hereto, was a resident of Scott's Mobile Home Park (Park), located in Duval County, Florida. She lived in the Park with William Scott, the son of the Park owners, their child, and four other children who are Ms. Allen's natural children. The Petitioner, Mr. Scott, and the five children lived in a three-bedroom, double-wide mobile home, at the pertinent time in 1993. It had been provided by Mr. Scott's parents, the owners of the Park. The Department acquired certain property in Duval County, Florida, in 1993, as a result of an inverse condemnation action of which the property known as Scott's Mobile Home Park was a part. The Department, in due course, notified the Park residents that it would be closed and that efforts would be undertaken to relocate the residents. The Department staff obtained information from Ms. Allen and Mr. Scott, as well as from the other Park residents, in order to determine the amount of relocation assistance funds each displaced resident should receive, in accordance with the legal authority cited below. The Allen-Scott family were determined to be "90-day occupants" of the Park, as that term is used in applicable regulatory provisions. In calculating the relocation assistance amount to which the Petitioner may be entitled, the Department follows certain procedures set out in the Code of Federal Regulations, adopted by reference in its own rules and procedures. It must find replacement housing and then pay displaced residents a lump sum equal to 42 months of the difference between the new higher rent, if that be the case, and utility payments and what the displaced residents had been paying for rent and utilities prior to being displaced. The Department initially located replacement housing for the Allen- Scott family on Phillips Highway in Jacksonville, Florida. While the family had been living in a three-bedroom mobile home, the standards adopted by the Department for decent, safe, and sanitary housing for a family of seven required four bedrooms, which is the type residence the Department sought. The rent and utilities amount for the mobile home suitable to those standards, located on Phillips Highway, was $691.00 per month. The Allen-Scott family, however, desired a mobile home on the west side of Jacksonville, Florida. In order to calculate the amount due to the Petitioner, the Department had to subtract from the $691.00 per month figure for the property on Phillips Highway, the rent and utility total amount that the family had been paying at the Park. The evidence shows, however, that the living arrangements under which they occupied that dwelling in the Park were not the result of an arms-length transaction and that, in reality, the family was not paying any rent for the premises. Therefore, the Department had to impute a rental figure for them. Accordingly, Mr. William Kelbaugh, a Property Appraiser for the Department, made that imputed calculation, based upon the square footage of the Allen-Scott mobile home and the amount per square foot paid for other decent, safe, and sanitary dwellings in the same area, or comparable residences. After establishing that the average rent for mobile homes was approximately $.41 per square foot, Mr. Kelbaugh multiplied the square footage of the Allen-Scott family mobile home by that figure and, after making a deduction because of the condition of the Park, in terms of the actual rental value of the premises they had been living in, he arrived at a "market rental" of $375.00 per month. He then reduced the "market rental" figure by 15 percent based upon his observation of the premises, its condition, and his experience of 20 years or more in making such appraisals. The Department also had to include utility payments in its calculation. It received information from two utility companies about the family's utility bill over the prior 12-month period and computed an average monthly utility payment amount of $202.29. The Department also attempted to establish the family's income. It was required to do so because, in calculating the payment to be made for relocation assistance, the Department must subtract from the new rent and utility payment the smaller of the sums equal to the rent paid or, in the Petitioner's case, imputed, or 30 percent of gross monthly family income. In trying to determine their income amount, the Department asked the Petitioner and Mr. Scott to provide income information on its income certification form, which the Petitioner and Mr. Scott signed and dated March 10, 1993. The Petitioner represented that their income came from Aid to Families with Dependent Children and other welfare benefits, which are not considered income for purposes of the Department's calculation of relocation assistance. Mr. Scott represented that he earned $3,764.25 in income and $3,000.00 in "income from rental" for 1992, which is the year used in making the calculation. The Department asked repeatedly for verification of their income figures in the form of tax records, payroll stubs, or statements from employers. Mr. Scott, however, worked for his parents, the former owners of the Park. They were asked to provide pay stubs and other verification of his income but did not do so at any time during 1993. Relocating the family was a protracted affair because the family required a four-bedroom mobile home, and such dwellings for rental are scarce. On September 14, 1993, the Department delivered an updated income certification form, since the one that the Petitioner and Mr. Scott had signed in March 1993 had expired. The Petitioner signed that form on September 14, 1993, and Mr. Scott signed it on September 22, 1993. That form indicated that Mr. Scott's income was certified by him as gross wages and salaries equal to $3,764.25. No verification of this income had been provided, however, so the Department calculated the relocation assistance due the family by using the market rental figure of $375.00, plus $202.29 for utilities. The Petitioner and Mr. Scott refused to accept this figure and appealed the determination to the Department's "central office". While their appeal was pending in the Department's process, the Department, at the Petitioner's request, located another four-bedroom mobile home for rent on Beaver Road in Jacksonville, Florida. This was with the assistance of Robert Scott, Mr. William Scott's father. The Department re- calculated the Allen-Scott family relocation assistance eligibility supplement. The re-calculated amount was $6,161.82. That amount was presented to the Petitioner and Mr. Scott, but they refused to accept it. On December 7, 1993, Mr. Bud Eddleman, the Department's Administrator of Relocation Assistance, made his decision concerning the Petitioner's appeal and concluded that the $6,161.82 sum to be correct. On February 17, 1994, the Department received a handwritten note signed by Vivian Scott, William Scott's mother, stating that William Scott had been paid $842.25 in cash in 1992 and was furnished rent in lieu of salary equal to $3,000.00. (See Exhibit 8 in evidence). The Petitioner, thus, took the position that that was the totality of income of the family during the calculation period in question, as that relates to the calculation of the amount of relocation benefits they felt they should receive. The Department takes the position that this verification is not accurate and acceptable for a number of reasons. The Allen-Scott household had numerous possessions that suggested a lifestyle that could not be supported by a discretionary income of $842.25 annually. The family could apparently afford $202.79 per month as an average utility payment. Further, the family acquired a second car during the time period that Department employees were on the premises in the process of making its calculation and appraisal. The family had the funds to acquire and operate two cars, pay the utilities throughout 1993; and their personal property included certain items of antique furniture, at least four televisions, and three videocassette recorders. The Petitioner contended at hearing that Mr. Scott had no income because of the inverse condemnation proceedings because his work had been as a maintenance man for the operating Park. This is irrelevant in the context of relocation assistance, which concept is not designed to include considerations of whether the displacee is rendered unemployed by the taking of the property involved. It is also irrelevant factually because the year in question was 1992, and the relocation of people from the Park could not begin until 1993. Even then, Mr. Scott's maintenance duties would be needed for a certain period of time. Thirdly, there is also evidence that Mr. Scott worked on projects other than those located in the Park, for which he earned income. Mr. Scott did not provide tax returns, pay stubs, bank records, or a statement from his employer (his parents) despite numerous entreaties by the Department to do so. No more defining, verified evidence of the family income was offered at hearing. Accordingly, the income figures which the Petitioner provided are not credible. The family lifestyle and possessions evidence much more income than Mr. Scott would admit. The only evidence produced to verify Mr. Scott's income was sent from his mother some two months after the Department denied the "appeal". The statement is not credible, as Mrs. Scott alleged that in 1992, her son had been paid $842.25 for his work as a maintenance man. Mr. Scott's parents paid another resident of the Park $4,609.92 for performing the same type of work, at the same time. Further, the Petitioner testified inconsistently at hearing regarding income. She said on the one hand that Mr. Scott's parents "took the rent out of his paycheck", and on the other hand, said that he made approximately $127.00 per week as a maintenance man and Mrs. Scott "sometimes wrote him a check" and "would take out, you know, a little bit each week". This testimony demonstrates that, with the other evidence referenced above, the Allen-Scott family has not been forthcoming concerning its income. The totality of the evidence shows that Mr. Scott and his parents, as his employer, the source of the Petitioner's relevant income, had not been acting in good faith. Accordingly, it is reasonable to compute the relocation assistance payments by ignoring the 30 percent factor and instead merely subtracting the old rent and utilities from the new rent and utilities chargeable at the new premises occupied by the Allen- Scott family. The income figures presented by the Petitioner are simply unverified and are not credible. Another candidate for relocation assistance, Kirk Kostenko, a resident of the Park, refused to provide income verification. In his situation, as in that of the Allen-Scott family, represented by the Petitioner, the income figures presented by the Petitioner were not accepted by the Department. In the Kostenko situation, no relocation assistance was paid. While the Petitioner argued and made reference to other families allegedly receiving much larger sums for relocation assistance from the Park, the Petitioner produced no evidence that different standards or criteria were applied in those situations, as opposed to those applied to her family situation involved in the relocation assistance payment question. She adduced no evidence that would demonstrate that the Department had acted in a manner departing from the standards of its rules and procedures or in a manner aberrant from its normal policy in calculating the relocation assistance payments in the manner found above. The relocation assistance program is not a social welfare program based upon actual financial need of a family or based upon the number of dependents involved. Rather, it is a program to compensate persons forced to find replacement housing because the Department acquires their private property, either through eminent domain or inverse condemnation. The assistance is based upon what the family was paying for its rent and utilities and what it would have to pay for them after relocation. The final figure presented and supported by the Department in this proceeding was calculated by applying the regular, accepted criteria set out in the Department's rules, regulations and procedures.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered finding that the relocation assistance benefit, which the Department proposes to award the Petitioner in the amount of $6,161.82, is reasonable and should be awarded. The Petition should be dismissed in its entirety. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4899 Petitioner's Proposed Findings of Fact The Petitioner presented no discreetly set forth proposed findings of fact. Rather, in essence, the Petitioner's post-hearing "pleading", in letter form, consists essentially of argument concerning the quantity and quality of evidence. Therefore, specific rulings on proposed findings of fact cannot be made. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact numbers 1-34 are accepted, to the extent consistent with those made by the Hearing Officer. Those proposed findings of fact which are not consistent with those made by the Hearing Officer are rejected as being either not supported by preponderant evidence of record, being irrelevant, immaterial or unnecessary to the resolution of the disputed issues. COPIES FURNISHED: Ms. Emma Allen 3523-1 Alcoy Road Jacksonville, FL 32221 Thomas H. Duffy, Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Attn: Diedre Grubbs, M.S. 58 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue is whether Petitioner, Triple M Enterprises, Inc., employed persons in the State of Florida without obtaining workers' compensation insurance meeting the requirements of Chapter 440, Florida Statutes. If Petitioner did not obtain the required insurance, the subsequent issue is the amount of any penalty.
Findings Of Fact The Division is charged with the regulation of workers' compensation insurance in the State of Florida and is responsible for enforcing the statutory requirement that employers secure workers' compensation insurance for the benefit of their employees. Triple M, is a corporation located at 24393 North 71, Robertsdale, Alabama, and is a framing and drywall contractor. Dwain Sanders and Celina Sanders are principals of Triple M. On June 4, 2004, Triple M was engaged as a subcontractor in the construction of a building on the premises located at 334 Gulf Breeze Parkway, Gulf Breeze, Florida. On June 4, 2004, Patricia Jean Krossman was an investigator employed by the Division. Her duties include ensuring that the employers in the state are in compliance with the requirements of the Workers' Compensation Law. More specifically, she visits work sites, and determines if the workers are covered by workers' compensation insurance. The morning of the aforementioned date, Ms. Krossman visited 334 Gulf Breeze Parkway, in Gulf Breeze, Florida, and observed four men engaged in construction activities, including framing a building. Dwain Sanders, who was at the site, identified himself as the owner and president of Triple M, which was the employer of the four men who were working at the site. Ms. Krossman requested that Mr. Sanders provide her with proof that he had workers' compensation coverage effective in Florida. Mr. Sanders made an immediate effort to supply the requested proof. Pursuant to Mr. Sanders' request, his insurance agent in Montgomery, Alabama faxed a portion of Triple M's policy to the Division's Pensacola office. The documents received by Ms. Krossman caused her to conclude that Triple M had not complied with Florida law because she believed the document did not demonstrate that Florida premium rates were paid, or that Florida class codes were used, or that there was a Florida endorsement in place. Ms. Krossman conducted a database search of the Coverage and Compliance Automated System database and the National Council on Compensation Insurance database. The search did not demonstrate that Triple M had a policy then effective in Florida. Having concluded that the documents produced by Triple M failed to demonstrate coverage in accordance with Chapter 440, Florida Statutes, and after noting the absence of policy information in the databases, Ms. Krossman issued a Stop- Work Order to Triple M on June 4, 2004. The portion of Triple M's policy, provided by Triple M's insurance agent by facsimile, number 748-36-79, which was issued by the American Home Assurance Company to Triple M, had a classifications of operations page which related solely to work to be performed in Alabama. This page provided class codes, the rates, and the premium basis which provided the total estimated annual premium that Triple M was required to pay, based on Alabama law. The faxed document included a policy information page that provided in Item 2, that the policy period ran from January 1, 2004 until January 1, 2005. It provided in Item 3A, as follows: "Workers Compensation Insurance: Part One of the policy applies to the Workers' Compensation Law of the states listed here: AL." The policy information page provided in Item 3C that, "Part Three of the policy applies to the states, if any, listed here:" and lists 44 states, including Florida. The policy provides in Item 4, "Classifications of Operation," a statement of the rating group, and the "total classification premium increase limits," under the heading, "State of Alabama Totals." On June 25, 2004, Ms. Krossman received via facsimile machine, an endorsement to policy no. WC 748-36-79. This was the first time Ms. Krossman had seen this endorsement. It purported to add Florida coverage using Florida premium rates and class codes. It also purported to add the Gulf Breeze Parkway work-site where Ms. Krossman found Triple M engaged in construction activities. The base policy, on its face, indicated a date of January 1, 2004. The issue date of the endorsement was June 16, 2004. This endorsement was not in effect on June 4, 2004, the date of the Stop Work Order. Ms. Krossman served Triple M a "Request for Production of Business Records for Penalty Assessment Calculation." The Division has the statutory authority to request payroll records from an employer working in Florida and the "Request for Production of Business Records for Penalty Assessment Calculation" is the vehicle through which those records are sought. The payroll records provide the data required to calculate any penalties for failure to maintain required coverage. Penalties are calculated by determining the premium amount the employer would have paid based on his or her Florida payroll, and multiplying by a factor of 1.5. In response to the "Request for Production of Business Records for Penalty Assessment Calculation," Triple M provided payroll records. The records indicated that Triple M had employed workers in Florida in 2001, 2002, 2003, and 2004. Using the records provided by Triple M, the penalty was calculated by Ms. Krossman. After some interaction with Ms. Celina Sanders, of Triple M, she eventually determined that the proper penalty to be assessed was $36,521.61. The penalty was calculated using Florida premium rates and class codes in accordance with the dictates of Section 440.38, Florida Statutes. The penalty is correct. Triple M depends on its agent, the Goff Group, of Montgomery, Alabama, to provide proper insurance coverage. As noted above, Item 3.A of the policy listed the primary state of coverage as being Alabama. The policy plainly states at "Part Three - Other States Insurance, How This Insurance Applies," in paragraph 1, that "This other states insurance applies only if one or more states are shown in Item 3.C of the Information Page." One of the other states shown is Florida. At paragraph 2, of the section noted immediately above, the policy states, "If you begin work in any one of those states after the effective date of this policy and are not insured or are not self-insured for such work, all provisions of the policy will apply as though that state were listed in Item 3.A of the Information Page." At paragraph 3 of the policy, the following sentence is found: "We will reimburse you for the benefits required by the workers' compensation law of that state if we are not permitted to pay the benefits directly to persons entitled to them." At paragraph 3, the following sentence is found: "If you have work on the effective date of this policy in any state not listed in Item 3.A. of the Information Page, coverage will not be afforded for that state unless we are notified within thirty days." After that language is the following: "B. Notice. Tell us at once if you begin work in any state listed in Item 3.C. of the Information Page." The plain language of the policy reveals that Triple M's employees were covered by the policy, and that the employees would receive the same benefits, in case of injury, as if it were a Florida Policy with Florida rates and classifications, so long as the work at Gulf Breeze Parkway had not been going on for more than thirty days. Ms. Sanders testified under oath that she notified Triple M's carrier within 30 days of the inception of the work at the Gulf Breeze Parkway site. A letter to the Department of Financial Services signed by Dwain and Celina Sanders on behalf of Triple M, dated June 24, 2004, asserted that Triple M had just begun working in Florida, for the first time in 2004, the week that Ms. Krossman entered the work site. Triple M has been in business for 22 years and has never been bankrupt. Triple M has 401K plans for its employees as well as health insurance. Triple M would have difficulty paying the fine proposed by the Division. Triple M believed its workers were covered by workers' compensation insurance and they were covered. The parties agree that American Home Assurance Company is authorized to write insurance in Florida.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Division of Workers' Compensation affirm the Stop-Work Order issued to Petitioner on June 4, 2004, and assess a fine of $36,521.61. DONE AND ENTERED this 13th day of January, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2005. COPIES FURNISHED: Joe Thompson, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399 Dwain Sanders Triple M Enterprises, Inc. 24393 North 71 Robertsdale, Alabama 36567 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The Petitioner owned property in Charlotte County, Florida which laid within the right of way of proposed Federal Highway 1-75. The Petitioner's property was required for the highway right of way. The Petitioner lived on the property in a mobile home for more than ninety (90) days prior to the time that officials of the Florida Department of Transportation initiated negotiations for acquisition of the property. During February, 1975, David L. Nicholson, a Right of Way Agent with the Department of Transportation, contacted the Petitioner in order to negotiate the acquisition of the Petitioner's property, and to explain the amount of relocation assistance benefits that the Petitioner might be entitled to receive in order to compensate him for his having to move his residence. Petitioner was offered $3,500.00 in relocation benefits. This offer was predicated on the Petitioner's remaining an owner/occupant of new property to which he moved. When Mr. Nicholson was advised that the Petitioner was going to be renting new property, rather than purchasing it, Mr. Nicholson advised the Petitioner that he could receive up to $4,000.00 in rent supplements. The Petitioner construed the $4,000.00 figure as the amount that he would receive. The $4,000.00 was actually the highest figure that the Petitioner could receive, and was considerably more than the Petitioner was entitled to receive. The Department of Transportation compensated the Petitioner for the cost of moving his mobile home, and setting it up on the lot which the Petitioner was renting. The amount provided the Petitioner for this purpose was $970.15. Petitioner concedes that he was adequately compensated for moving and setting up his mobile home. The rental value of the Petitioner's property in Charlotte County, without the mobile home on it was $50.00 per month. This figure is called the "economic rent" of the property. A comparable lot in Charlotte County, Florida, would have cost the Petitioner $55.00 per month to rent. The difference between the monthly rental of a comparable lot, and the economic rent of the Petitioner's property was $5.00. If the Petitioner received this amount for four years, he would be entitled to $240.00. The Department of Transportation offered to pay this amount to the Petitioner, but he refused it, contending that he is entitled to $4,000.00. No evidence was offered at the hearing from which it could be concluded that Petitioner was entitled to receive more than the $970.15 provided him to move and set up his mobile home, and $240.00, the difference between the rental value of a comparable lot, and the economic rent of the Petitioner's property for four years as relocation assistance benefits.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That an order be entered finding the Petitioner entitled under the provisions of 42 U.S.C. 4624 to $240.00 in relocation assistance benefits above and beyond the $970.15 already provided; and that this amount be forwarded to the Petitioner. RECOMMENDED this 18th day of February, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings The Carlton Building, Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1977. COPIES FURNISHED: Philip Bennett, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304 Veltie A. Dodson Route 5, Box 268 Rocky Mount, Virginia 24151 Tom B. Webb, Jr., Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304
The Issue Is Worldwide Investment Group, Inc. (Worldwide) entitled to apply to the State of Florida, Department of Environmental Protection (the Department) for funds to reimburse Worldwide for costs associated with petroleum clean-up at 500 Wells Road, Orange Park, Florida, Facility ID#108736319? See Section 376.3071(12), Florida Statutes.
Findings Of Fact The Property Howard A. Steinberg is a Certified Public Accountant, (CPA) licensed to practice in Florida. In addition to his work as a CPA, Mr. Steinberg has other business interests. Among those interests is Worldwide, a corporation which Mr. Steinberg formed for the purpose of acquiring certain assets, or properties, from Home Savings Bank and American Homes Service Corporation (Home Savings Bank). Worldwide became a corporation in July 1996. Mr. Steinberg is the sole shareholder of that corporation and has been since the inception of the corporation. In addition to controlling all of the assets within Worldwide, Mr. Steinberg is the sole officer of the corporation. The corporation has no other employees. Worldwide has its office in Hollywood, Florida, in the same physical location as Mr. Steinberg's accounting firm of Keystone, Steinberg and Company, C.P.A. Under its arrangement with Home Savings Bank, Worldwide acquired property known as Save-A-Stop at 500 Wells Road, Orange Park, Florida. Mr. Steinberg engaged the law firm of Burnstein and Knee, to assist Worldwide in the purchase of the Save-A-Stop property. The Save-A-Stop property is a commercial parcel that has experienced environmental contamination from petroleum products. To address that problem the firm of M. P. Brown & Associates, Inc., (Brown) was paid for services in rendering environmental clean-up of that site. Substantial work had been done by Brown to remediate the contamination before Worldwide purchased the property from Home Savings Bank. Home Savings had paid Brown for part of the costs of clean-up before Worldwide acquired the Save- A-Stop property. After the purchase, Mr. Steinberg paid Brown to finish the clean-up. Application for Reimbursement Mr. Steinberg, as owner of Worldwide, understood that the possibility existed that Worldwide could be reimbursed for some of the clean-up costs by resorting to funds available from the Department. On July 29, 1997, Bonnie J. Novak, P.G., Senior Environmental Geologist for Brown, wrote to Mr. Steinberg to provide a cost estimate for preparing a reimbursement application in relation to the Save-A-Stop property. The cost to prepare the application was $1,870.00. On August 27, 1996, Mr. Steinberg accepted the offer that had been executed by Brown by Mr. Steinberg signing a contract, and by calling for Brown to prepare an application, to be presented to the Department for reimbursement of costs expended in the clean-up. In furtherance of the agreement between Worldwide and Brown, $935.00 was paid as part of the costs of preparation of the application. This payment was by a check mailed on August 27, 1996. The balance of the fee was to be paid upon the completion of the preparation of the application. In 1996, outside the experience of his businesses, Mr. Steinberg was having difficulties in his marriage. To address the situation, Mr. Steinberg filed a Petition for Dissolution of Marriage. That Petition was filed in April 1996, at which time Mr. Steinberg assumed custody of the children of that marriage, with no right for their mother to unaccompanied visits. After filing for dissolution, Mr. Steinberg relied on others to assist him in dealing with his personal and business life. From December 1996 through January 6, 1997, Mr. Steinberg was particularly influenced by the upheaval in his personal life. It caused him to request extension of deadlines from the Internal Revenue Service for the benefit of his clients whom he served as a CPA. During December, Mr. Steinberg was only in his office for approximately 10 percent of the normal time he would have spent had conditions in his personal life been more serene. On January 6, 1997, the conditions in Mr. Steinberg's personal life took a turn for the worse when his wife committed suicide. In December 1996, attorney Jerrold Knee, who had assisted Mr. Steinberg as counsel in purchasing the Save-A-Stop property, spoke to someone at Brown concerning the status of the preparation of the application for reimbursement of funds expended in the clean-up. He was told that the application was being worked on. Mr. Knee was aware that the deadline for filing the application was December 31, 1996. Mr. Steinberg was also aware of the December 31, 1996, deadline for submitting the application. In that connection, Mr. Knee was familiar with the difficulties that Mr. Steinberg was having in Mr. Steinberg's marriage in 1996. Mr. Knee knew that Mr. Steinberg was infrequently in the office attending to business. Mr. Knee surmised that Mr. Steinberg was relying upon Mr. Knee to make certain that the application was timely submitted, and Mr. Knee felt personally obligated to assist Mr. Steinberg in filing the application, given the knowledge that Mr. Steinberg was not in the office routinely during December 1996. His sense of responsibility did not rise to the level of a legal obligation between lawyer and client. Although Mr. Knee was aware of the pending deadline for submitting the application for reimbursement, and had inquired about its preparation by Brown, and had discussed it with Mr. Steinberg, Mr. Knee never specifically committed to making certain that the reimbursement application was filed on time. As it had committed to do, Brown prepared the reimbursement application for the Save-A-Stop site. The application was for the total amount of $58,632.85, not including preparation charges and CPA Fees. Written notification of the preparation of the application was provided to Mr. Steinberg on December 12, 1996. The correspondence reminded Mr. Steinberg that the application needed CPA approval, an invoice and registration, and a signed certification affidavit. Most importantly, the notification reminded Mr. Steinberg that an original and two copies of the application must be sent to a person within the Department prior to December 31, 1996. The notification specifically indicated the name of that individual within the Department and set forth that person's address. The notification arrived in Mr. Steinberg's office during the week of December 12, 1996. That notification was not opened until late January or early February 1997. Mr. Steinberg opened the letter at that time. During December 1996 Mr. Steinberg was responsible for opening the mail received in his office. No other person was expected to open that mail for the benefit of Worldwide. Untimely Application On February 6, 1997, Worldwide submitted its application for reimbursement for clean-up at the Save-A-Stop location. That application was received by the Department on February 7, 1997. The Department has consistently interpreted the statutory deadline for submitting reimbursement applications in accordance with Section 376.3071(12), Florida Statutes, (Supp. 1996) to be absolute. Consequently, on February 11, 1997, the Department denied the Worldwide application because it had been filed beyond the December 31, 1996, deadline recognized by the statute. Worldwide contested that proposed agency action by requesting a hearing to examine the issue of the timing of the application submission. Consequences of Untimely Application In Florida, petroleum taxes are deposited for the benefit of the Inland Protection Trust Fund. The Florida Legislature allows monies to be appropriated from those deposited funds. In that budgetary process, the Governor's office serves as liaison in requesting the Legislature to appropriate monies from the Inland Protection Trust Fund in relation to the costs of cleanup of sites contaminated by petroleum products. To assist the Governor's office, the Department identifies the need for covering the costs of the clean-up and makes a recommendation to the Governor to provide to the Legislature concerning the amount to be appropriated for the clean-up. In the history of the clean-up program, in 1995, problems were experienced with fraudulent and inflated claims calling for reimbursement for the cost of clean-up. This led to a debt of approximately $550,000,000.00. There was a concern that that debt could not be repaid in a reasonable time frame. In response, the Department, as authorized by the Legislature in action taken in 1996, negotiated a bond transaction through the Inland Protection Financing Corporation. With the advent of the bond issue, $343,000,000.00, not to include the cost of funding the bond, was made available to pay for petroleum clean-up. That bond issue was designed to fund the payment of reimbursement applications that had been received before the end of the life of the petroleum clean-up reimbursement program in place. During the 1996 session, in which the Legislature approved the bond issue, the Legislature also made changes to the petroleum clean-up program. The changes were fundamental in that applicants were no longer reimbursed for clean-up work that had been performed. With the advent of the legislative changes, petroleum clean-up, under a system calling for payment from the fund, could only be conducted if an applicant was pre-approved to conduct the clean- up. As part of that process of gaining funds pursuant to the bond issue, the Department performed an analysis, as authorized by the Legislature, to determine that amount necessary to pay existing obligations that had accrued under the petroleum clean-up reimbursement program that predated the Legislative change in 1996. To ascertain the existing obligation, the Department totaled the known dollar amount associated with the existing reimbursement applications and a portion of unreviewed reimbursement applications that had been received. The Department adjusted the sum to be paid in association with applications that had not been reviewed to that point, having in mind prior experience in which only 82 percent of claims had been allowed. The overriding concern by the Department was that it needed to determine whether the bond issue would be sufficient to defease the backlog of applications for reimbursement previously filed. Information concerning the reimbursement obligations was made known to the Florida Supreme Court in bond validation proceedings held before that court. The Inland Protection Finance Corporation was also made aware of the reimbursement obligations. In 1997, the Department gave further information to the Inland Protection Financing Corporation, indicating that the amount of bond was sufficient for reimbursement obligations. The Department in association with the terms of the bond transaction agreed that the bond proceeds would not be used to fund claims that were received after January 3, 1997. The deadline for submitting applications had been extended until January 3, 1997, by virtue of a statutory amendment found at Section 376.3071(12), Florida Statutes, (1997). Therefore, consistent with the statutory change, the Department had allowed applications submitted after December 31, 1996, but before January 4, 1997, to be considered on their merits. The December 31, 1996, deadline had existed under Section 376.3071(12), Florida Statutes (Supp. 1996). The statutory change occurred because a number of applications that were filed pursuant to the December 31, 1996, deadline set forth in Section 376.3071(12), Florida Statutes (Supp. 1996) did not meet that deadline. The reason for this failure was due to weather conditions that caused overnight couriers, Federal Express and United Parcel Service, to be unable to deliver parcels to the Tallahassee, Florida, airport. These applications, as other applications, were sent to the Department at a Tallahassee, Florida, address. Based on the inability of the two couriers to deliver applications under the timeline anticipated, the Department did not receive that group of applications until January 2, 1997. Subsequently, the applications were accepted as timely based upon the amendment found in Section 376.371(12), Florida Statutes (1997) which extended the filing deadline until January 3, 1997. As a policy consideration, the Department believes it must strictly enforce the deadline for submission of reimbursement applications, as extended by the Legislature, to avoid the future accrual of debt for applications submitted after January 3, 1997, which the Department cannot reasonably anticipate. Apropos of the present case, the Department does not believe that it is well-advised to allow even a single claim for reimbursement, if that claim was received after January 3, 1997. To date, 64 applications have been received by the Department subsequent to December 31, 1996. All but six of those applications were received no later than January 3, 1997. Two of that six applications for reimbursement are still pending before the Department. Historically 22,000 applications for petroleum clean-up have been received by the Department since 1986. At the time of the hearing, 9,000 applications were pending before the Department. In December 1996, 3,000 applications were received calling for reimbursement of costs. At the time of hearing, approximately $340,000,000 in reimbursement claims had not been satisfied. Petitioner makes its claim to be excepted from the deadline for submitting its application based upon the doctrine of equitable tolling.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered denying the application of Worldwide to participate in the reimbursement program for clean-up expenses as untimely. DONE AND ENTERED this 7th day of May, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1998. COPIES FURNISHED: P. Tim Howard, Esquire P. Tim Howard and Associates, P.A. 1424 East Piedmont Drive, Suite 202 Tallahassee, Florida 32312 Jeffrey Brown, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue presented is whether Petitioner City of Opa Locka is responsible for reimbursing the Department of Transportation for the cost of relocating water and sewer lines owned and maintained by Petitioner within the State Road 916 right-of-way.
Findings Of Fact Opa Locka Boulevard and N. W. 135 Street in Dade County, Florida, are paired one-way streets between I-95 and N. W. 27 Avenue. They are located within the city limits of the City of Opa Locka and have been designated as State Road 916. Public records reveal that the portions of Opa Locka Boulevard and N. W. 135 Street which were involved in the Department’s road construction project and the right-of-way attendant to those streets were dedicated to perpetual public use by private landowners platting subdivisions between 1928 and 1956. In 1959 the City of Opa Locka transferred those roadways and rights-of-way to Dade County, Florida, so that the County would be responsible for maintaining them. In 1979 Dade County transferred its interests to the Department. The State Road 916 designation was subsequently made. The Department determined the need to improve those streets by widening them and making other improvements such as installing drainage and lighting. As the Department prepared to begin that project, it conducted a utility pre-design meeting on May 26, 1992. Such a meeting involves the Department’s employees who will be supervising portions of a road improvement project and representatives of the owners of utilities located within the area of anticipated construction. The owners of utilities are advised as to the details and extent of the anticipated construction, and they mark maps as to the location of their utilities. As the road design process proceeds, agreements are made and relocation schedules are prepared. If practical, the Department will design the road around utilities which conflict with the location of the roadway. If designing around the utility is not practical, the owner is required to relocate any utility which conflicts with the Department’s roadway or which interferes with the construction project. If the utility owner intends to relocate its own utilities, a Utility Relocation Schedule is agreed upon by the owner and the Department. If the owner requests that the Department do the relocation work and agrees to pay the costs in advance, a Joint Participation Agreement is entered into, and the Department’s contractor performs the work. The City’s consulting engineer attended the May 1992 utility pre-design meeting and attended many subsequent meetings. Subsequent meetings were also attended by the City’s public works director and the City’s project engineer. During the pre-design and design stages of the road project, the Department was able to design around all utilities or obtain voluntarily removal or relocation by all utility owners except the City. The City maintained that it could not afford to remove or relocate its water and sewer lines. Both the City and the Department were very concerned about the location of the City’s lines and about the lines themselves. The lines were made of cement asbestos and were old. Cement asbestos lines cannot withstand nearby construction and will break. Neither the Department nor the City wanted the lines to break during construction, and the Department did not want to build new roads and have the lines underneath breaking afterward, requiring re-construction. As feared, the City’s sewer line ruptured while another utility owner was relocating its utilities in the area of the City’s sewer line prior to the Department’s construction work. Further, as a result of that other utility owner’s relocation work, it was discovered that the City’s water and sewer lines within the project limits were not in fact located where the City’s maps of the lines reflected. Therefore, the City’s utilities posed a danger to the construction project, and the Department could not allow the lines to remain wherever they were. Due to the City’s position that it could not afford to remove or relocate its water and sewer lines and due to the Department’s need to proceed with the construction project, the Department and the City’s representatives agreed that the Department would issue to the City a 30-day notice to remove or relocate, but the City would not do so. The Department would then do the work for the City, and the City would reimburse the Department for its costs under a reimbursement plan yet to be negotiated. That meeting was attended by the City’s consulting engineer, the City’s former public works director, and the City’s current public works director. Everyone attending agreed that the lines needed to be replaced with newer, stronger lines. The Department agreed to issue the 30-day notice, do the work, and then seek reimbursement from the City since doing so was the only solution to the problem which would allow the road project to proceed without substantial damages and increased costs due to delay. Based upon that agreement and the City’s inability to pay the costs of relocating its water and sewer lines, no Utility Relocation Schedule or Joint Participation Agreement was entered into by the City and the Department. The City’s consulting engineer drew preliminary plans for the relocation of the City’s utilities, and the Department submitted those plans to its contractor to obtain bids for the City’s relocation work. The contractor priced the work and obtained three bids. The subcontract was awarded, the prime contractor added its overhead costs, and that became the anticipated cost. The Department kept the City advised as to additional costs as they were incurred. On July 7, 1993, the Department issued its 30-day notice to the City, expecting the City to respond in the agreed non-adversarial manner. Instead, the City requested this administrative proceeding. As the work was actually performed, the City expressed no disagreement with the materials used or the construction techniques. The City’s representatives were frequent visitors to the construction site since the actual work disclosed more problems. Not only were the City’s utilities not located where the City indicated they were but also the construction crews encountered lines which the City did not know existed. These problems caused additional delays in the project and thereby caused additional expenses to the Department. The reasonable and necessary costs incurred by the Department to remove and relocate the City’s utilities within the project limits total $791,751.07
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Petitioner City of Opa Locka responsible for reimbursing the Department of Transportation in the amount of $791,751.07 for the costs incurred in relocating and replacing the City's water and sewer utilities. DONE AND ENTERED this 23rd day of April, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997. COPIES FURNISHED: Patricia C. Ellis, City Attorney City of Opa Locka 777 Sharazad Boulevard Opa Locka, Florida 33054 Francine M. Ffolkes Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Petitioners purchased the property here involved in 1961 and occupied it as their residence until April 1991 when they moved to a new home they had just completed. The Hillsborough County Northwest Expressway was in the talking stage for several years before the final route for the Expressway was decided. Numerous public hearings were held before the final route of the Expressway was determined. Throughout most of these meetings and discussions Petitioners' property was deemed likely to be in the right-of-way of the Expressway and subject to taking. Anticipating their property would be taken for the Expressway, Petitioners, in 1989, purchased another lot on which to construct a residence. The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project. In turn the Expressway Authority designated O.R. Colon Associates, Inc. (Colon) to serve as its agent in acquiring the property needed for this project. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter in January 1991 informing them that their property would probably be taken and that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. That letter further provided that: In order to facilitate construction of this project, the Authority will begin the appraisal and relocation survey of your property, after which you will be offered the fair market value of your property based upon an independent appraisal. * * * In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistance payments and other costs payable only during the settlement process. (Emphasis added) Petitioners also had a business occupying the same property on which their residence was situated. This business was incorporated and did not move from the property until after Petitioners had moved into their new residence in April 1991. Subsequent to moving their residence from the property to be taken for the Expressway project Petitioners were shown a relocation brochure (Exhibit 2) prepared by Colon which contained information regarding relocation benefits. The first personal contact with Petitioner was made by an employee of Colon on January 16, 1992 at which time a written offer to purchase the property for $116,400 was presented to Petitioners.
Recommendation It is recommended that a Final Order be entered dismissing Verlyn Spivey's and Sandra Spivey's application for relocation benefits associated with the taking of their property in the right-of-way of the Hillsborough County Northwest Expressway. DONE and ORDERED this 22nd day of December, 1992, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1992. COPIES FURNISHED: RONALD R SWARTZ ESQ 610 WATERS AVE - STE J TAMPA FL 33604 CHARLES G GARDNER ESQ ASST GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 THORNTON J WILLIAMS ESQ GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 BEN G WATTS/SECRETARY ATTN: Eleanor F. Turner DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On May 12, 1988, Petitioner, in accordance with Section 381.709(2), Florida Statutes, and Rule 10-5.008, Florida Administrative Code, timely filed four separate letters of intent (LOIs) reflecting its intent to file applications for certificates of need (CONs) for the development of nursing homes in Lee, Flagler/Volusia, Gadsden and Bay Counties. The LOIs set forth the following "proposed capital expenditure" in accordance with Section 381.709(2)(c), Florida Statutes: Lee County $3,800,000.00 Flagler/Volusia County $4,600,000.00 Gadsden County $3,800,000.00 Bay County $3,800,000.00 As required by Section 381.709, Florida Statutes, each of the LOIs contained a resolution by Petitioner's board of directors authorizing and approving the filing of a CON application for the project. Additionally, the resolution authorized and approved the expenditure of such funds as was necessary to accomplish the project anticipated for the CON and within the cost guidelines specifically indicated in the CON. The format of the board resolution used by Petitioner was basically the same as the sample board resolution published by the Respondent in March, 1987, in the Florida Administrative Weekly which does not require a specific project cost to be stated. A copy of this sample board resolution was furnished to Petitioner. By letter dated May 19, 1988, Respondent acknowledged its acceptance of Petitioner's LOIs and advised Petitioner that the deadline for filing its CON applications was June 1, 1988. At the same time Petitioner was advised of the schedule to be followed by Respondent in reviewing the CON application and the date for final action by the Respondent. There was no mention of Respondent's policy to summarily reject a CON application where the "needed capital expenditure" specified in the application exceeded the "proposed capital expenditures" specified in the LOI. By letter dated May 25, 1988, signed by Amy Jones and received by Petitioner on June 1, 1988, after the mailing of its CON applications on May 31, 1988, Respondent informed Petitioner that its CON applications would not be accepted and would be returned without further review "if the proposed project costs [needed capital expenditures] in the application exceed the proposed project costs [proposed capital expenditures] set forth in your letter of intent". This letter was also mailed to all other applicants in the May/June, 1988 nursing home batching cycle. There is insufficient evidence to show that any other applicant received the May 25, 1988 letter from Amy Jones in time to change its application or that any other applicant did, in fact, change its application based on this letter. Neither the application form nor the instructions pertinent to the application form advised the applicant in any fashion that the application would be summarily rejected without further review if the total project costs [needed capital expenditure] specified in the application exceeded the "proposed capital expenditures" specified in the LOI. To the contrary, the applicant is directed to provide estimated project cost in Table 25. On June 1, 1988, Petitioner timely filed its CON application on each of the proposed projects in the prescribed format with Respondent for the four service areas in question. In the documentation filed on June 1, 1988, Petitioner indicated the following "needed capital expenditures" for the proposed projects: Lee County $4,369,200.00 Flagler/Volusia Counties $5,165,930.00 Gadsden County $4,002,500.00 Bay County $4,005,000.00 The CON applications were mailed on May 31, 1988 by "UPS Overnight Mail" and received by Respondent on June 1, 1988. The record is silent as to whether the total project cost [estimated project costs] specified in Petitioner's applications were inappropriate or whether the "proposed capital expenditures" specified in the Petitioner's LOIs were inappropriate or intentionally lowered to mislead any potential competing applicant. By letter dated June 3, 1988, Petitioner attempted to file with Respondent changes in its applications indicating "needed capital expenditures" that would conform to the "proposed capital expenditures" specified in the LOIs. These changes would have required Petitioner to change its proposed construction from a steel frame to a wood frame building. Petitioner learned of the Respondent's policy too late to submit timely conforming CON applications. Petitioner's "proposed capital expenditures", although correct at the time the LOIs were filed, were only intended to be "rough estimates". By letter dated June 9, 1988, Respondent informed Petitioner that its CON applications were being rejected because the specified costs [needed capital expenditures] in the applications exceeded the "proposed capital expenditures" specified in the LOIs. Petitioner was aware of the substantial statutory changes to the CON law that became effective October, 1987. This was the first nursing home batching cycle to fall under the new statutory changes. The board resolution referred to in Section 381.709(2)(c), Florida Statutes, that is required to be filed with the LOI is the same board resolution referred to in Section 381.707(4), Florida Statutes that is required to be filed with the CON application. For this reason, the Respondent considers the LOT to be an integral part of the application and, thereby locks in an applicant to the type of service, number of beds and proposed capital expenditures specified in the LOT. As to the prohibition of increasing the "proposed capital expenditures" specified in the LOT, the Respondent points to the fact that the board resolution must be prepared before the LOT and the cost can not be increased after the board's resolution is filed in the LOT. Respondent will reject an application where the board resolution is not filed with the LOT but filed with the application. However, the Respondent will not reject an application where the board resolution is filed with the LOT but not filed with the application. The proposed costs of the project must be shown in the public notification of the applicant's intent to file a CON application, pursuant to Rule 10-5.008(1)(c), Florida Administrative Code. There is currently no statute or rule which specifically prohibits the "needed capital expenditures" in the CON application from exceeding the "proposed capital expenditures" in the LOI. Likewise, there is currently no statute or rule that specifically requires the Respondent to summarily reject a CON application where the "needed capital expenditures" specified in the CON application exceed the "proposed capital expenditures" specified in the LOI. Although Respondent concedes there is no specific authority for rejecting an application where the "needed capital expenditures" specified in the application exceed the "proposed capital expenditures" specified in the LOI, it contends its "policy" is justified because the legal advertisement, which is published after the LOI is filed but before the application is submitted, is required for the purpose of putting other potential competing applicants on notice of what that applicant intends to do so that a potential competing applicant can make a business decision as to whether it wants to file an application. The record is silent as to what extent the general public, competing applicants and businesses rely upon the published notice, how they might be mislead by relying upon the same, or the effects, if any, of such misunderstanding. Since the 1987 amendment became effective, Respondent has been consistent in following its policy of returning an application that contains project costs greater than the "proposed capital expenditures" specified in the the LOI. Although the Respondent allows an applicant to supply additional information, within a specified time period, where there are omissions or ambiguities in an application, the Respondent does not consider changes in the number of beds, type of service or project costs to be an omission or ambiguity which can be corrected or revised at a later time through the omissions process.
Findings Of Fact Petitioners are husband and wife. They were required to locate to another home due to the acquisition of right-of-way by Respondent for construction of Interstate Highway 75 in Collier County, Florida. It is undisputed that Petitioners are eligible displacees under the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and are displaced persons entitled to relocation assistance within the definition of 49 Code of Federal Regulations, Subtitle A, Section 25.2(f). Petitioners and their children resided in two of three travel trailers which they owned on a five acre tract of land in a rural, wet area of Collier County, Florida. Both Petitioners were employed. He drove daily approximately 80 miles each way to his job as a taxi cab operator in Fort Lauderdale, Florida. She worked part time as a store clerk in a business near their home. On February 23, 1986, an employee of Respondent completed a household survey questionnaire regarding Petitioners' residence. The purpose of the questionnaire was to decide requirements governing assistance to be provided them in view of their future relocation to other housing as a result of their displacement by the interstate highway construction. The survey establishes that Petitioners owed $2,000 on their property, and that replacement housing was required for the husband, wife and two children of opposite sexes. The husband signed the survey instrument. Petitioners' property had an appraised value of $25,950. Of this amount, $17,550 reflected land value and $8,400 was the value of improvements. Petitioners initially received $25,950 when their property was acquired by Respondent through eminent domain proceedings. In the absence of comparable, utility equipped acreage in Collier County where applicable zoning restrictions would permit the placement of mobile homes, Respondent upgraded the type of replacement housing used to determine the amount of relocation assistance due to Petitioners. The effect of such an upgrade, termed "last resort housing," is to permit a higher limit on the payment to be made by Respondent to Petitioners for replacement housing. In this case, the upgrade consisted of Respondent's use of home sites with permanent houses on them in the calculation of the payment to be made to Petitioners. Respondent used three comparable parcels of property in the Golden Gate subdivision near Naples, Florida. The highest priced property was $53,900. This area is approximately 30 miles West of the site of the land previously occupied by Petitioners. A determination of comparable property is generally limited to a 50 mile radius of the dislocatee's property and, when possible, closer to the job of the primary income producer in the family. In this instance, no properties were available in the 50 mile radius to the East of Petitioners' property in the direction of Fort Lauderdale due to the immediate proximity of the Florida Everglades. On April 21, 1986, the comparable properties were selected, approved and determined by Respondent's staff to comply with the relocation program's requirements that comparable housing parcels used to compute the replacement housing payment meet decent, safe and sanitary living standards. Those standards require that comparable properties provide a minimum living area for the number of affected inhabitants, as well as appropriate utilities. The process of computing a replacement housing payment requires that the property appraisal of the dislocatee's property, including improvements less depreciation, be subtracted from the highest priced comparable to provide the amount due to the displaced property owner. Due to the condition of Petitioners' travel trailers, septic tank and well, those items were depreciated 40 per cent which resulted in a value of $4,279. Respondent rounded this amount off to $4,300. This final amount plus the land value of Petitioners' property of $17,500 came to a total of $21,800 for purpose of determining an amount to be subtracted from the highest priced comparable property value of $53,900. The result of this subtraction, or $32,100, reflected the amount of the replacement housing payment which Respondent determined to be due to Petitioners. The net effect of Respondent's depreciation of Petitioners' property improvements resulted in a reduction of the amount to be subtracted from the highest priced comparable property value which, in turn, increased the amount of the replacement housing payment. Dislocatees may acquire new property wherever they wish without regard to the location of comparable properties used to calculate their relocation assistance payment, although such comparable properties must be available to dislocatees who desire to purchase them. Petitioners contracted with a builder to construct a home in Palm Beach County. After payment by them of $4,000 to this individual, he vanished with their money. Subsequent to the experience with the unreliable West Palm Beach builder, Petitioners indicated to Respondent a desire to have their relocation payment computed again, this time on the basis of replacement housing in Broward County, Florida. Three new comparables were selected by Respondent's staff in that county. As had occurred in Collier County, Respondent's staff encountered difficulty finding comparable acreage property due to the lack of availability of such property which would meet restrictions imposed on such acreage with mobile homes. The result was that Respondent's staff determined no comparable acreage to be available in Broward County, Florida. Palm Beach County, Florida, was also searched by Respondent staff for comparable properties, but this effort was abandoned as a result of Petitioners expressed greater desire to relocate in Broward County. On June 26, 1987, three residences were selected by Respondent from the Pembroke Pines area Broward County to serve as comparables in the computation of the amount of the relocation housing payment. The evidence establishes that these homes were either "double wide" trailers or permanently affixed modular homes. These properties were selected because the comparables used in Collier County were no longer available. These residences were an "up grade" from the small travel trailers inhabited by Petitioners. Since the selling value of the highest priced Broward County comparable was only $49,500, the result, after subtraction of the estimated value of $21,800 for Petitioners' property, was a housing payment of $27,700. Since this payment amount is less than the amount originally computed by Respondent's staff, its use is prohibited by relocation program guidelines. Therefore, the previously computed greater amount of $32,100 for the area near Naples, Florida, became the final replacement housing payment. The evidence establishes that Petitioners filed an application and claim for replacement housing payment on March 23, 1987, and were paid $32,100 by state warrant dated April 28, 1987. Advanced moving expenses of $400 were paid to them by state warrant dated September 9, 1987. A state warrant for $1,497.26 to reimburse incidental expenses was issued to Petitioners on December 1, 1987. In total, it is found that Petitioners received $59,947.26 when the complete amount of relocation expense payments is added to the $25,950 amount also paid to them by the State of Florida in initially acquiring their property. Petitioners moved from their property in Collier County during July or August 1987. Petitioners located a house in West Palm Beach, Florida, but were unable to meet mortgage qualifications. However, after a high down payment with approximately half of the funds received from Respondent, they purchased the home. The amount of indebtedness remaining on the home is slightly less than $60,000 and has created a financial problem for Petitioners. Their desire is for Respondent to pay off the remaining mortgage amount or provide an acre of land with trailers in which to live. Respondent is authorized to administer the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Respondent also administers a corresponding relocation aid program established by state law. Rules governing the state program are almost a verbatim duplicate of the federal program. Respondent's right-of-way procedures manual, comprised of state rules governing nonfederal relocation assistance, and federal regulations are used in administration of federal relocation aid projects.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' claim for further payment. DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1. 2. Unnecessary to result reached. Addressed. Unnecessary to result reached. Not supported by weight of the evidence. 5-6. Unnecessary to result reached. Self-serving assertion; not supported by the weight of the evidence. Addressed. Unnecessary to result reached. 10-14. Addressed. Adopted by reference. Addressed. Unnecessary to result reached. Addressed. Rejected, not supported by weight of the evidence. Rejected as a conclusion or recommendation, not a factual finding. Respondent's Proposed Findings 1-5. Addressed in part; remainder unnecessary to result. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ann Porath, Esquire 12773 West Forest Hill Boulevard Suite 209 West Palm Beach, Florida 33414 Thomas H. Bateman, 111, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Honorable Kaye N. Henderson Secretary Haydon Burns Building Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Petitioner is entitled to an "in lieu" payment under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4622) as implemented by I. M. 80-1-71 and amended by P. M. 81-1.2.
Findings Of Fact Respondent, Florida department of Transportation, because of the proposed widening of State Road 61, Thomasville Road in Tallahassee, Florida, notified Petitioner in the spring of 1974 that the property on which the business was located was to be taken by the Respondent for road purposes. Petitioner was offered, but did not accept, relocation assistance to move his business to another location or to reimburse him in the amount that a never would charge. Other relocation assistance by the Respondent to find sites which would be appropriate for Petitioner's business was offered and four such sites were presented to Petitioner. Petitioner found the sites undesirable and has located a site at which he intends to move his business. Petitioner contends that the location on Thomasville Road is a good location; that he acquires "walk-in" business from time to time; that the sign on the building is of a type consistent with the limited type of advertising available to members of his profession and is beneficial to him; that the building he rents on Thomasville Road has additional space in which he at one time did rent to other interests, but which rental possibilities were foreclosed upon the general public knowledge that the Respondent would widen Thomasville Road and in the process remove the rental building. Petitioner operates his business from the location and shows that the operation of his consultant service is his sole business. The Petitioner filed for in lieu payments after refusing to accept relocation assistance for the moving of his business Petitioner contends: that nothing in the Act states or implies that a displaced person is required to accept relocation assistance if it is economically unsound; that the Respondent failed to sustain the burden of proof that Petitioner is not entitled to "in lieu" payment under the Act. Respondent contends: that the Petitioner failed to show he is entitled to "in lieu" payments under the Act; that the losses such as production costs, rental income, and advertising possibilities are not within the contemplation of the Act.
The Issue The issue in this proceeding is the amount payable to Respondent in satisfaction of Respondent's Medicaid lien from a settlement received by Petitioner from a third party, pursuant to section 409.910(17), Florida Statutes.
Findings Of Fact Petitioner is a 35-year-old female who currently resides in Homestead, Florida. Respondent is the state agency authorized to administer Florida's Medicaid program. § 409.902, Fla. Stat. On or about February 15, 2012, Petitioner was struck by a motor vehicle and severely injured while attempting to rescue her young son, who had run into a busy street in front of her home in Hollywood, Florida. Petitioner suffered a fractured skull and broken leg. She was hospitalized and received medical care for her injuries. Subsequently, she was treated by an orthopedic physician and a neurologist. She estimated that she last received care or treatment from these physicians in August 2013. The Florida Medicaid program paid $35,952.47 in medical assistance benefits on behalf of Petitioner. Petitioner filed a lawsuit against the owners of the vehicle that struck her. On January 11, 2013, Petitioner and the owners of the vehicle that struck Petitioner ("Releasees") entered into a "Release and Hold Harmless Agreement" ("Settlement") under which the Releasees agreed to pay Petitioner $150,000 to settle any and all claims Petitioner had against them. Attached to the Settlement was a document titled "Addendum to Release Signed 1/11/13" ("Addendum"), which allocated liability between Petitioner and the Releasees and provided a commensurate allocation of the Settlement proceeds for past and future medical expense claims. The Addendum stated in pertinent part: The parties agree that a fair assessment of liability is 90% on the Releasor, Mirta B. Agras, and 10% on the Releasees. Furthermore, the parties agree that based upon these injuries, and the serious nature of the injuries suffered by the Releasor, Mirta B. Agras, that $15,000.00 represents a fair allocation of the settlement proceeds for her claim for past and future medical expenses. Petitioner testified that she primarily was at fault in the accident. She acknowledged that the statement in the Addendum that she was 90% at fault for the accident and the Releasees were 10% at fault was an estimate that she formulated entirely on her own, without obtaining any legal or other informed opinion regarding the apportionment of respective fault. Petitioner is not a physician, registered nurse, or licensed practical nurse. There was no evidence presented establishing that she has any medical training or expertise. Thus, there is no professional basis for Petitioner's position that 10% of the Settlement proceeds represents a fair, accurate, or reasonable allocation for her medical expenses. Rather, her position appears to be based on the intent to maximize the Settlement proceeds that are allocated to non-medical expenses, so that she is able to retain a larger portion of the Settlement proceeds. Respondent did not participate in discussions regarding the Settlement or Addendum and was not a party to the Settlement. Petitioner acknowledged that she still receives medical bills related to the injuries she suffered as a result of the accident, and that she still owes money for ambulance transportation and physician treatment. She was unable to recall or estimate the amount she owes. No evidence was presented regarding the actual amount of Petitioner's medical expenses incurred due to her injury. Petitioner has not paid any of her own money for medical treatment, and no entities other than Medicaid have paid for her medical treatment. Since being injured, Petitioner continues to experience medical problems, including pain, dizziness, memory loss, difficulty in walking or standing for extended periods, inability to ride in vehicles for extended periods, balance problems, and difficulty watching television or staring at a computer screen for extended periods. Petitioner claims that, nonetheless, she has not been told that she would need additional medical care or treatment. On or about January 31, 2013, Respondent, through ACS, asserted a Medicaid claim pursuant to section 409.910(17), seeking reimbursement of the $35,952.47 in medical assistance benefits it paid on behalf of Petitioner. Petitioner instead sought to reimburse Respondent $15,000, the amount that Petitioner and Releasees agreed in the Addendum represented a fair allocation of the Settlement proceeds for Petitioner's claim for past and future medical expenses. When Petitioner and Respondent were unable to agree on the amount Petitioner owed Respondent in satisfaction of its Medicaid lien, Petitioner paid ACS the $35,952.47 alleged to be owed Respondent and filed the Petition initiating this proceeding.
